Citation Nr: 0104626
Decision Date: 02/14/01 Archive Date: 02/20/01
DOCKET NO. 94-48 849 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to an initial evaluation in excess of 20
percent for degenerative disc disease of the lumbosacral
spine.
2. Entitlement to an initial evaluation in excess of 30
percent for a bipolar disorder (previously characterized as
an anxiety disorder).
3. Entitlement to initial compensable evaluations for
tendonitis with impingement syndrome of the right shoulder,
retropatellar pain syndrome of the knees bilaterally,
bilateral pes planus with a history of metatarsalgia,
allergic rhinitis, and irritable bowel syndrome.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K.L. Salas, Counsel
INTRODUCTION
The veteran had active military service from February 1965 to
December 1968, January 1975 to February 1976, and January
1978 to January 1993.
This appeal arose from an April 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California. The RO granted entitlement to service
connection for degenerative disc disease of the lumbosacral
spine, evaluated as 20 percent disabling. Entitlement to
service connection was also granted for tendonitis with
impingement syndrome of the right shoulder, retropatellar
pain syndrome of the knees bilaterally, bilateral pes planus
with a history of metatarsalgia, allergic rhinitis, and
irritable bowel syndrome, each evaluated as noncompensably
disabling.
In the April 1994 rating decision, the RO also denied a claim
of entitlement to service connection for a chronic acquired
psychiatric disorder. The veteran perfected an appeal.
Subsequently, in February 1996, entitlement to service
connection for an anxiety disorder was granted. A notice of
disagreement (NOD) was filed with regard to the evaluation
assigned, but no statement of the case (SOC) was issued.
Manlincon v. West, 12 Vet. App. 238 (1999).
The veteran provided oral testimony before a Hearing Officer
at the RO in February 1995, a transcript of which has been
associated with the claims folder.
The veteran requested a hearing before the Board of Veterans'
Appeals (Board) at the RO, but then asked for a
videoconference hearing instead. The hearing was scheduled,
and the veteran was notified but he did not report for the
hearing.
In May 1999 the Board issued a remand for additional
development and adjudicative action.
In July 2000 the RO recharacterized the service connected
anxiety reaction as bipolar disorder and assigned a 30
percent evaluation effective from February 1, 1993. The
other claims were continued at the prior evaluations.
The case has been returned to the Board for further appellate
review.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
On remand the veteran perfected an appeal of the initial
evaluation assigned for anxiety reaction, subsequently
increased by the RO to 30 percent and recharacterized as
bipolar disorder. In his substantive appeal he requested a
hearing before the Board at the RO.
The veteran had previously requested a Board hearing in
connection with his other claims on appeal, and as noted
above, he did not report for the scheduled hearing.
However he has not yet been afforded an opportunity for a
Board hearing in connection with his subsequently perfected
appeal for entitlement to an initial evaluation in excess of
30 percent for bipolar disorder. The other claims are
deferred pending a remand for a hearing before the Board.
It is a basic principle of veterans' law that the Board shall
decide an appeal only after affording the claimant an
opportunity for a hearing. 38 U.S.C.A. § 7107 (West 1991 &
Supp. 2000). Pursuant to 38 C.F.R. 20.700 (2000), a hearing
on appeal before the Board will be granted if an appellant
expresses a desire to appear in person. The veteran has
expressed such a desire.
Under the circumstances, the Board is remanding the case to
the RO for the following action:
1. The appellant has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the RO. Kutscherousky v. West, 12
Vet. App. 369 (1999).
2. The RO should take appropriate action
to schedule the appellant for a personal
hearing before a travel Member of the
Board sitting at the RO. A copy of the
notice to the appellant of the scheduling
of the hearing should be placed in the
record.
Thereafter, the case should be returned to the Board for
final appellate review, if otherwise in order. By this
remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is notified by the RO.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).
MICHAEL D. ST. GERMAIN C 24 483 824
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